April Arlene Clark v. Winnebago Industries, Inc. ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0673
Filed April 14, 2021
APRIL ARLENE CLARK,
Petitioner-Appellant/Cross-Appellee,
vs.
WINNEBAGO INDUSTRIES, INC.,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
April Clark appeals the denial of penalty benefits in a workers’
compensation dispute with her employer. Winnebago cross-appeals the
commissioner’s award of permanent disability benefits, the benefit rate applied,
and the alternate medical care option. AFFIRMED IN PART AND REMANDED
FOR FURTHER PROCEEDINGS ON APPEAL; AFFIRMED ON CROSS-
APPEAL.
Mark S. Soldat of Mark S. Soldat, PLC, West Des Moines, for appellant.
Valerie A. Foote (until withdrawal) and Lindsey Mills of Smith Mills Schrock
Blades P.C., West Des Moines, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.
2
GREER, Judge.
After sustaining a work injury to her right wrist in July of 2016, April Clark
received benefits under the workers’ compensation system.1 Now, Clark advances
a claim for additional entitlement to penalty benefits under Iowa Code section
86.13(4)(c) (2017).2 Winnebago Industries (Winnebago) contends the
commissioner and district court properly denied her request because the company
1 The parties stipulated this was a work injury. Clark petitioned for benefits on
January 31, 2017.
2 Iowa Code section 86.13(4) provides:
a. If a denial, a delay in payment, or a termination of benefits
occurs without reasonable or probable cause or excuse known to the
employer or insurance carrier at the time of the denial, delay in
payment, or termination of benefits, the workers’ compensation
commissioner shall award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or 85B, up to fifty
percent of the amount of benefits that were denied, delayed, or
terminated without reasonable or probable cause or excuse.
b. The workers’ compensation commissioner shall award
benefits under this subsection if the commissioner finds both of the
following facts:
(1) The employee has demonstrated a denial, delay in
payment, or termination of benefits.
(2) The employer has failed to prove a reasonable or probable
cause or excuse for the denial, delay in payment, or termination of
benefits.
c. In order to be considered a reasonable or probable cause
or excuse under paragraph “b”, an excuse shall satisfy all of the
following criteria:
(1) The excuse was preceded by a reasonable investigation
and evaluation by the employer or insurance carrier into whether
benefits were owed to the employee.
(2) The results of the reasonable investigation and evaluation
were the actual basis upon which the employer or insurance carrier
contemporaneously relied to deny, delay payment of, or terminate
benefits.
(3) The employer or insurance carrier contemporaneously
conveyed the basis for the denial, delay in payment, or termination
of benefits to the employee at the time of the denial, delay, or
termination of benefits.
3
had a reasonable basis for initially delaying benefit payments to Clark. Winnebago
cross-appeals over three issues it asserts were not supported by substantial
evidence: (1) error in finding permanent disability, (2) error in calculating the benefit
rate, and (3) error in awarding alternate medical care.
While using a screwdriver at work, Clark noticed pain in her right hand and
wrist that traveled up her arm and into her right shoulder. Following the July 2016
injury, Clark treated with a general practitioner and a physician assistant until she
was referred to an orthopedic specialist, Dr. Timothy Gibbons. In October, Dr.
Gibbons evaluated Clark’s condition after taking diagnostic tests and noted:
I had a comprehensive discussion with her about issues of causation.
I think the x-ray implies she has [a] previous old trauma though she
cannot recall when this occurred. I think this is a temporary agitation
of a pre-existing condition as it stands today.
Then, after reviewing a November MRI, Dr. Gibbons declared Clark at maximum
medical improvement (MMI) and discharged her with restrictions in November
2016. Her November MRI showed an ununited ulnar styloid fracture, edema, and
triangular fibrocartilage perforation. He could not explain her wrist pain and could
offer her no further treatment. As for any permanency, Dr. Gibbons opined, “I do
not believe that she sustained any permanent partial impairment secondary to her
employment, but I do believe that she would benefit from a different work
assignment that she is more tolerant of, which would include avoiding power tools,
especially the power tools that cause a torque.”
At Winnebago’s request, Dr. Joshua Kimelman performed an independent
medical examination (IME) in July 2017. After reviewing the medical records and
performing a physical exam, he diagnosed Clark with “[c]hronic wrist pain of
4
unknown etiology.” Dr. Kimelman did not agree with Dr. Gibbons’s opinion that
Clark had a pre-existing condition with her wrist. But he causally related the wrist
condition and her need for care to her work activities at Winnebago. Yet, he opined
Clark was at MMI and recommended no further treatment. Zeroing in on her
complaints, Dr. Kimelman noted, “I do not believe the nonunion of her ulnar styloid
is in any way related to her complaint of dorsal wrist pain.” In response to a series
of questions in his report, Dr. Kimelman addressed Clark’s degree of permanent
impairment:
Question 6: Do you believe that Claimant’s work injury caused
her to sustain any degree of permanent impairment? What
permanent impairment would you assign? Would any portion of
Claimant’s impairment be attributable to pre-existing or personal
condition?
Answer: As regards to permanent impairment, that is difficult
to determine as she demonstrates essentially full range of motion
and while she does demonstrate relative atrophy of the right arm
compared to the left, her measurement, particularly with pinch grip,
was very variable, probably not indicative of organic disease.
Finding Clark should be on light lifting status, he recommended limited occasional
lifting of twenty pounds without repetitive work as “restrictions . . . secondary to her
job-related injury, although . . . unable to attribute an anatomic injury to her arm at
this point.”
Next, at the request of Clark’s counsel, in August 2017, Dr. Sunil Bansal
examined Clark. He addressed several questions in his IME report. First, he found
Clark injured her right wrist at work and confirmed
[t]he mechanism of injury of forceful wrist torqueing from tightening
screws would lead to loaded ulnar deviation, making it highly
pathognomonic for a triangular fibrocartilage complex tear. Given
her immediate wrist pain and her lack of preexisting wrist pain, this
is highly suggestive of an acute tear or the aggravation of a pre-
existing tear to make it clinically relevant.
5
(Emphasis added.) On the subject of permanency, Dr. Bansal found a permanent
loss of grip strength with no prior history of impairment of her right wrist. He found
her condition was consistent with outcomes attributed to a triangular fibrocartilage
complex tear. Dr. Bansal assigned Clark a 10% permanent impairment rating of
the right upper extremity, restricted her lifting to ten pounds and recommended
treatment with a Mayo Clinic specialist in triangular fibrocartilage complex (TFCC)
tears.
In her September 2017 hearing before the deputy workers’ compensation
commissioner, Clark raised a number of issues including if she was entitled to
penalty benefits.3 With a stipulated hearing report before the deputy
commissioner, the parties discussed issues that were resolved and those that were
not.
DEPUTY: I have discussed the hearing report with the parties
off the record and will go over that again on the record. The parties
have stipulated as to the existence of an employer-employee
relationship at the time of the alleged injury and that Ms. Clark
sustained an injury on or about July 8, 2016. They agree the alleged
injury caused temporary disability during a period of recovery, but
dispute whether or not the injury caused a permanent disability, so
extent of disability is at issue. I have discussed there are a number
of weeks listed on the hearing report, and I’m not going to go through
those again at this time, regarding temporary and healing period
3 The list of issues included:
1. Is the alleged injury a cause of permanent disability?
2. If the alleged injury is a cause of permanent disability, what
is the extent of disability?
3. What is the rate?
4. Is Clark entitled to alternate medical care?
5. If the alleged injury is a cause of permanent disability, is
Clark entitled to interest?
6. Should Clark be awarded penalty benefits?
7. Should costs be awarded to Clark?
6
benefits. There was a rate dispute, and a payment log has been
provided in the case. Is that Exhibit D?
EMPLOYER: Yes, Your Honor.
DEPUTY: And the [employer] intends to pay the underpaid
benefits before submitting their brief in this case; is that correct?
EMPLOYER: Yes, your Honor.
DEPUTY: So there’s really no dispute concerning what’s been
underpaid at this time. You’ve agreed upon the rate, and you just
need—the claimant needs to receive the payment?
CLAIMANT: Yes, but to—
DEPUTY: And interest?
CLAIMANT: Yeah. To obtain that, you have to do the credit
interest computation—
DEPUTY: Right.
CLAIMANT: —using the United States rule, so I can’t say how
much at this point.
DEPUTY: Sure, right. And that will be briefed by the parties?
CLAIMANT: It would.
DEPUTY: Unless you’re able to agree. The defendant does
agree that it’s liable for those benefits and it has paid benefits.
They’ve just underpaid them. And they also agree that the claimant
was off work during this period of time. The defendant, are you
alleging that the claimant is entitled to 37.5 weeks or is that the
claimant’s contention?
CLAIMANT: That’s my contention.
The parties also stipulated that the commencement date for permanent partial
disability benefits was July 19, 2016, but Winnebago contested any permanency
finding. After a hearing, the deputy commissioner awarded Clark benefits for a
10% permanent impairment of the right upper extremity and ordered alternate care
at the Mayo Clinic.4
4 The findings were 1) Clark sustained a 10% permanent disability of her right
upper extremity as a result of the stipulated workplace injury; 2) Clark’s
classification for calculation is married with three children, and the correct workers’
compensation rate is $372.30 per week; 3) Clark is not entitled to penalty benefits
for Winnebago’s non-payment of permanent partial disability benefits; and 4) Clark
is entitled to alternate medical care in the form of an evaluation with a specialist in
TFCC tears at the Mayo Clinic per Dr. Bansal’s recommendation.
7
Ultimately, both parties appealed the deputy’s decision, but Clark first
applied for a rehearing to address the penalty issue. On January 25, 2018, the
deputy denied the rehearing application. The appeal to the workers’ compensation
commissioner came next. On July 31, 2019, the commissioner affirmed the deputy
commissioner’s decision in all respects noting
I find the deputy commissioner provided a well-reasoned analysis of
all the issues raised in the arbitration proceeding. I affirm the deputy
commissioner’s findings of fact and conclusions of law pertaining to
those issues.
The next month, Clark petitioned for judicial review to the district court.
Winnebago cross-petitioned. The district court affirmed the commissioner. Clark
appealed, and Winnebago cross-appealed.
Standard of review and preservation of error.
Iowa Code chapter 17A governs judicial review of final decisions by the
workers’ compensation commissioner. Ramirez-Trujillo v. Quality Egg, L.L.C., 878
N.W.2d 759, 768 (Iowa 2016). “[W]e review the district court decision to decide if
our legal conclusions mirror those reached by the district court.” Meyer v. IBP, Inc.,
710 N.W.2d 213, 225 (Iowa 2006). “If we reach the same conclusions, we affirm;
otherwise we may reverse.” Watson v. Iowa Dep’t of Transp., 829 N.W.2d 566,
568 (Iowa 2013). We will uphold the commissioner’s factual findings if, after
reviewing the record as a whole, we determine substantial evidence supports the
findings. Iowa Code § 17A.19(10)(f). “Evidence is substantial if ‘the quantity and
quality of evidence . . . would be deemed sufficient by a neutral, detached, and
reasonable person, to establish the fact at issue when the consequences resulting
from the establishment of that fact are understood to be serious and of great
8
importance.’” Gumm v. Easter Seal Soc’y of Iowa, Inc., 943 N.W.2d 23, 33 (Iowa
2020) (alteration in original) (quoting Iowa Code § 17A.19(10)(f)(1)).
Both Clark and Winnebago challenge the findings of fact of the
commissioner and the application of law to those facts. Both agree that the other
preserved error on those issues appealed.
Clark’s appeal.
Clark’s request for penalty benefits.
The deputy commissioner held Clark was not entitled to penalty benefits
because the claims about her marital status and if she suffered a permanent injury
were fairly debatable issues. The commissioner and district court agreed. When
payment of benefits is delayed without reasonable or probable cause or excuse,
we consider the directive under Iowa Code section 86.13 to determine if an
employee is entitled to penalty benefits. Mannes v. Fleetguard, Inc., 770 N.W.2d
826, 831 (Iowa 2009). Clark advocates for a penalty award because (1) she was
underpaid based on her marital status, (2) there was no basis to deny her benefits
based upon her permanent injury, and (3) Winnebago underpaid her benefits after
she was placed on MMI status. Noting no legal venue addressed the issue, Clark
argues she was underpaid temporary partial benefits and temporary total disability
(healing period) from July 18 to November 26, 2016.
The first issue involves the question of Clark’s marital status and whether
the marital weekly benefit rate of $372.30 or the single weekly benefit rate of
$363.86 applied. After hearing testimony from Clark and her boyfriend, Jeremy
Wilson, the deputy commissioner said: “I conclude that the issue of whether Clark
was married at the time of the work injury was fairly debatable. No penalty benefits
9
should be awarded to Clark based upon the incorrect rate.” To bolster her position,
Clark emphasizes her testimony and that of her boyfriend confirming her existing
marriage to Joshua Clark. But she could not find her marriage license and offered
no tax returns confirming her marital status. In contrast, Winnebago relied upon
her W-4 tax filing at the time of her hire where she checked the box for “single” and
pointed to a 2015 medical report that noted Clark’s quote about her marital status
as “recently divorced.” The deputy commissioner found Clark credible on the
subject of her marital status. Based on her testimony, the thirty-nine year old Clark
confirmed her engagement to boyfriend Wilson at the same time she alleged she
was still legally married to Joshua Clark. Both Clark and Wilson testified that she
left her husband in September 2014 but he would not give her a divorce and she
could not afford one. At the hearing, Clark offered she had an appointment at
Legal Aid to pursue the divorce as well. The deputy commissioner considered the
question of marital status as one involving credibility and resolved the question in
Clark’s favor.
Going into the arbitration hearing, the marital status of Clark remained an
issue. Finding her W-4 and the medical record supported a single status,
Winnebago could rely upon that information, and did, to calculate an appropriate
benefit. Couple that documentary evidence with Clark’s inability to produce her
own documentation of her marital status, and it was reasonable for Winnebago to
contest the marital status. An employer can establish a “reasonable cause or
excuse” if the employer had a reasonable basis to contest the employee’s
entitlement to benefits. Christensen v. Snap-On Tools Corp., 554 N.W.2d 254,
260 (Iowa 1996). With divergent views and competing exhibits, we agree that the
10
marital status question was fairly debatable and was an issue that needed
resolution at a hearing with witnesses. “A claim is ‘fairly debatable’ when it is open
to dispute on any logical basis.’ Whether a claim is ‘fairly debatable’ can generally
be determined by the court as a matter of law.” Rodda v. Vermeer Mfg., 734
N.W.2d 480, 483 (Iowa 2007) (citations omitted). Clark failed to prove her
entitlement to penalty benefits on this issue.
Clark’s second argument is more nuanced and is an attack on two fronts—
one involving nonpayment of permanency payments and the other involving under-
payment of late-paid temporary benefits. On the permanency benefits issue, the
deputy commissioner found the determination of permanent injury was a fairly
debatable question. Contending it had good cause, Winnebago points to the early
medical conclusions of Dr. Gibbons. Winnebago argues it could reasonably rely
on Dr. Gibbons’s opinion that Clark suffered no permanent injury in the work
accident. It summarized its position:
As Clark continued to treat for her work injury beyond the
commencement date of July 19, 2016, she was paid intermittent
temporary partial disability benefits, but an assessment as to her
permanent disability arising from the work injury was unable to be
made until she concluded her treatment. Clark contends that “there
was no evidence at all that Winnebago was conducting an
investigation” during that time as to Clark’s potential permanent
disability from the work injury, but that “investigation” is clearly
evidenced by the medical records, as Winnebago was continuing to
provide medical treatment for Clark. The treatment records did not
provide any indication of permanent disability while Clark’s treatment
was ongoing. Once Clark concluded her treatment, signaled by Dr.
Gibbons assignment of MMI on November 17, 2016, he opined that
Clark did not sustain any permanent impairment as a result of the
work injury. Winnebago relied upon Dr. Gibbons’ opinion, the first
opinion received with regard to permanency, and no permanent
disability benefits were paid.
11
Clark argues that Dr. Gibbons’s opinion came after the stipulated July 19,
2016 date to commence the permanent partial disability benefits and that
Winnebago failed to show it had an excuse then to not pay the benefits. We look
to the applicable statute, which requires the commissioner to award penalty
benefits if both of the following are met:
(1) The employee has demonstrated a denial, delay in
payment, or termination of benefits.
(2) The employer has failed to prove a reasonable or probable
cause or excuse for the denial, delay in payment, or termination of
benefits.
Iowa Code § 86.13(4)(b)(1)-(2). But here, the question of permanency was
disputed based on the treating doctors’ opinions and the respective medical
opinions offered by both sides. The commissioner refused to award penalty
benefits for the delay in commencing permanent partial disability compensation.
And the first medical evidence supporting Clark’s claim of permanent injury was
not authored until Dr. Bansal’s August 2017 report. Winnebago argues the
overwhelming medical evidence found no permanency and, thus, it could
legitimately contest whether Clark’s complaints were a permanent condition arising
from the work injury. We think there is substantial evidence to support the
commissioner’s finding that there was a legitimate dispute as to the permanency
of Clark’s injury. See Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 267 (Iowa 2012)
(noting the reasonableness of the employer’s denial does not turn on if the
employer was right).
In a final swing at penalty benefits, Clark contends the issue of delayed
payments of temporary benefits was not considered even though she proved the
delay. Clark argues she was denied both temporary partial disability benefits and
12
healing period benefits during the periods of July 19 to August 9, 2016, and from
September 22 to December 7, 2016. Calling it a new argument on appeal,
Winnebago urges:
[T]he issue of late-paid temporary benefits [was not addressed]
because it was not raised by Clark’s counsel until well after the
arbitration hearing, in her Application for Rehearing filed on January
10, 2018. Again, the only issues with regard to interest and penalty
timely raised by Clark and considered by the hearing deputy were
whether Clark was entitled to penalty benefits for an underpayment
of benefits, if one was found, and whether Clark was entitled to
penalty benefits for Winnebago’s nonpayment of permanency
benefits. The hearing deputy properly considered these issues and
determined that Clark’s “claim was fairly debatable and she is not
entitled to penalty benefits.”
Still, Clark directs us back to the record made about the pre-trial hearing report
and the parties’ stipulation. In a fair assessment of that record, Clark reminds us
that Winnebago agreed there was an underpayment when the deputy
commissioner asked, “So there’s really no dispute concerning what’s been
underpaid at this time. You’ve agreed upon the rate, and you just need—the
claimant needs to receive the payment?”
Then, at the hearing, the calculation of interest or penalty was reserved for
later briefing after the deputy commissioner decided which benefit rate applied.
We agree that the issue of the penalty involving the underpayment of the
temporary benefits was not part of the deputy commissioner’s decision. Although
again raised in Clark’s rehearing application, the deputy commissioner summarily
denied the application. In the rehearing application, using the single benefit rate,
Clark calculated “47 days of principal payment delays in payment of $1,469.13 of
temporary partial benefits and healing period compensation.” Clark then
requested a 35% penalty based on the temporary benefit underpayments. Further,
13
Clark argues Winnebago failed to establish a reasonable cause for failing to timely
make the temporary benefit payments. Incorporating all arguments made in the
rehearing application, Clark appealed this penalty issue to the district court.
Winnebago notes:
Claimant filed an Application for Rehearing on January 10, 2018,
urging for the issues of penalty and interest to be reconsidered.
Claimant failed to address the credit and interest computations of
weekly compensation in her post-hearing brief as instructed by the
court on pages 4 and 5 of the hearing transcript, and the Application
for Rehearing was essentially an improper attempt to make
additional arguments that were not addressed in Claimant’s post-
hearing brief. Defendants responded, arguing that Claimant’s failure
to address all of her arguments in her post-hearing brief should not
give rise to an additional opportunity to do so.
Winnebago argues it is improper and untimely to consider now these arguments
made after the ruling on the issues. Yet Winnebago does not dispute the
stipulation that it underpaid temporary benefits. Likewise, Clark quotes from her
post-hearing brief directly disputing Winnebago’s current theme:
Likewise, the question of whether there have been underpayments
of [healing period] compensation, [temporary partial disability
benefits], and [permanent partial disability]compensation, which are
subject to a section 86.13(4) penalty cannot be determined, until the
weekly earnings and weekly compensation rate are known. All that
can and should be determined is that Winnebago has failed to
“satisfy all of the . . . criteria” in Iowa Code § 86.13(4)(c) with
“evidence.”
Accordingly, it is requested that after the weekly earnings and
compensation rate is determined, Clark and Winnebago be given
an opportunity to perform the credit/interest computations and either
stipulate to them or submit any dispute to the deputy: “We agree
that it is the commissioner’s obligation in the enforcement of section
85.30 (‘to resolve the dispute . . . if the parties cannot agree on
interest recoverable for late payments of weekly benefits.’”)
(Fourth and fifth alterations in original.) (Citations omitted.) We find the issue of
the delayed payment of temporary benefits appears to have been raised by
14
Clark—both before the hearing and in her post-hearing brief—and we find the
issue was not addressed by the deputy commissioner. Without a decision to
review, the proper remedy is to remand for a determination of the penalty issue as
to the underpayment of temporary partial permanent benefits and healing period
compensation as stipulated by the parties. Thus, we remand to the district court
with directions to remand to the commissioner for further proceedings consistent
with this opinion. See Baker v. Bridgestone/Firestone, 872 N.W.2d 672, 684-85
(Iowa 2015).
We otherwise affirm the rulings on the penalty question because the
determination of the marital status of Clark involved the credibility of witnesses, it
was not unreasonable to hold benefits until the hearing on the issue was held, and
the permanency determination was fairly debatable.
Winnebago’s cross-appeal.
Substantial evidence of a permanent injury.
All parties agree that Clark’s right wrist injury is a scheduled member injury
compensated based upon functional disability. See Iowa Code § 85.34.
Functional disability is assessed solely by determining the impairment of the body
function of the employee. Simbro v. Delong’s Sportswear, 332 N.W.2d 886, 887
(Iowa 1983). “Functional disability is limited to the loss of physiological capacity of
the . . . body part.” Id. Where the parties part ways is on the permanency aspect
of Clark’s July 2016 injury. Finding the decision of the deputy commissioner to be
“illogical,” Winnebago argues the finding of full range of motion in Dr. Kimelman’s
report equates to a 0% impairment rating and no other finding makes sense.
Winnebago discounts the IME conclusions of Dr. Bansal by urging that Clark failed
15
to establish her injuries were permanent by substantial evidence. Dr. Bansal found
and the commissioner accepted a 10% permanent disability determination of
Clark’s injury. Pointing to the omission of a permanency finding by all of Clark’s
treating doctors and Dr. Kimelman, the IME doctor, Winnebago contends the
weight of the evidence supports no permanency finding. Winnebago argues it was
illogical for the commissioner to find otherwise and for the district court to affirm.
Physicians are the logical individuals to evaluate permanency of an injury.
See Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595, 598 (Iowa 1997).
Winnebago draws our focus to Dr. Kimelman’s opinions. It trumpets the deputy
commissioner’s “most persuasive” finding concerning Dr. Kimelman’s report. Still,
while the deputy commissioner did give great credence to the Kimelman report,
stating specifically, “I find the opinion of Dr. Kimelman most persuasive,” there was
no finding that the Dr. Bansal report had no persuasive effect. The deputy found
“the impairment rating issued by Dr. Bansal unrebutted.” With no contrary
reference to the impairment rating assigned by Dr. Bansal, the deputy
commissioner accepted it. To be clear, no reference to an impairment rating might
mean a 0% rating, but when asked about permanency impairment, Dr. Kimelman
noted “it is difficult to determine” and then discussed Clark’s normal objective
findings. This could mean either he cannot formulate a firm opinion or that he
believes there is no impairment. Thus, we think the report is hardly as conclusive
as Winnebago would have us believe. We decline to speculate as to which opinion
Dr. Kimelman might voice.
16
Finally Winnebago attacks the findings contained in Dr. Bansal’s report by
comparing it to the findings of the treating doctors and Dr. Kimelman. Winnebago
addressed its view of the medical dichotomy
Dr. Bansal did not review Clark’s MRI to determine whether the
findings actually correlated to her area of pain in her wrist and
therefore his conclusions are speculative, at best. The remaining
physicians in the record did not assign any degree of permanent
impairment because the MRI findings did not correlate with Clark’s
area of pain in her wrist. Both Dr. Kimelman and Dr. Gibbons
reviewed Clark’s MRI. While Dr. Kimelman and Dr. Gibbons had
differing opinions with regard to whether Clark had a pre-existing
condition in her wrist, both agreed that the nonunion of the ulnar
styloid was not related in any way to Clark’s complaint of dorsal wrist
pain. The finding on the MRI of an ulnar styloid avulsion in the TFCC
lesion was away from Clark’s area of maximum tenderness, which
was the dorsal area of her wrist.
But as is often the case, there were multiple opinions on the cause of Clark’s pain
and how that translated to a permanent condition related to the work injury. Dr.
Kimelman diagnosed Clark with chronic pain5 but found it “difficult to assess
specifically where her pain is coming from.” When asked if Clark’s right wrist
condition and subsequent need for care were causally related to her work activities
at Winnebago on July 8, 2016, Dr. Kimelman said “yes.” And the deputy
commissioner could consider that when Dr. Kimelman was asked about any
permanent impairment, he did not affirmatively confirm there was zero impairment
but only opined “that is difficult to determine.” In contrast, Dr. Bansal expressed
firm opinions about Clark’s condition.
5 Winnebago also argued Clark had a pre-existing chronic pain syndrome, but we
found no evidence in this record that previous condition in any way related to her
right wrist.
17
To arrive at an answer, the deputy commissioner considered the expert
testimony together and found the unrefuted permanency rating of 10% calculated
by Dr. Bansal persuasive. See Evenson v. Winnebago Indus., Inc., 881 N.W.2d
360, 366 (Iowa 2016) (“An agency’s decision does not lack substantial evidence
because inconsistent conclusions may be drawn from the same evidence.”
(quoting Coffey v. Mid Seven Transp. Co., 831 N.W.2d 81, 89 (Iowa 2013))).
The district court agreed, finding:
The question in this instance is not whether the evidence
might support a different finding, but whether the evidence supports
the findings actually made. Viewing the record as a whole, there is
substantial evidence to back up Deputy Palmer’s finding of facts as
to the nature and extent of Clark’s 10% permanent disability as
required by Iowa Code section [17A.19(10)]. There is no evidence
to support the position that the deputy’s findings were irrational or
illogical.
Yet a disability determination presents a “mixed question of law and fact.”
See Larson Mfg. Co., Inc. v. Thorson, 763 N.W.2d 842, 856 (Iowa 2009). Factual
determinations are clearly vested in the discretion of the workers’ compensation
commissioner, so we defer to the commissioner’s findings “if they are based on
‘substantial evidence in the record before the court when that record is viewed as
a whole.’” Id. at 850 (quoting Iowa Code § 17A.19(10)(f)). Substantial evidence
is “the quantity and quality of evidence that would be deemed sufficient by a
neutral, detached, and reasonable person, to establish the fact at issue when the
consequences resulting from the establishment of that fact are understood to be
serious and of great importance.” Iowa Code § 17A.19(10)(f)(1). Although as fact
finder we might have decided this case differently, we conclude the evidence
provides substantial evidence supporting the findings actually made. See
18
Sherman v. Pella Corp., 576 N.W.2d 312, 320 (Iowa 1998). Winnebago argues it
is illogical to find Dr. Kimelman’s opinion to be the most persuasive but then follow
Dr. Bansal’s opinion on the permanency question. But on the permanency
question, Dr. Bansal offered:
Ms. Clark has a loss of grip strength, which is consistent with the
medical literature of outcomes for [TFCC] tears treated six months
past the injury date. In this case, Ms. Clark has not had treatment at
all. Ms. Clark has about a 30% loss of grip strength. The study found
an average loss of 17%. Based on Table 16-34 of the AMA Guides
of Evaluation for Permanent Impaimnent, Fifth Edition, losses of 10
to 30% are assigned an upper extremity impairment of 10%.
Applying law to fact, this opinion from Dr. Bansal provides substantial evidence of
a permanent disability. We affirm the commissioner’s ruling on the permanency
rating.
Application of appropriate rate.
At the hearing before the deputy commissioner, Winnebago argued Clark’s
weekly benefit rate is $363.86 based upon her status as single. Clark argued her
weekly rate is $372.30 based on her claim that she was married at the time of the
work injury. While there was evidence supporting both arguments, the deputy
commissioner found Clark to be married at the time of the injury. Rather than
questioning whether the evidence before us may support a different finding than
the one made by the commissioner, we ask whether the evidence supports the
finding actually made. See Larson Mfg. Co., 763 N.W.2d at 850.
Because this issue relates back to the discussion in the penalty section, and
to be consistent, we find the appropriate benefit rate was the “married at the time
of the work injury” rate. We agree with the commissioner’s findings.
19
Alternate medical care award.
On this last issue, Winnebago asserts the award of alternate medical care
is irrational, illogical, or wholly unjustifiable because Dr. Bansal is the only medical
expert who recommended this care. To recap, Bansal opined the tear to the TFCC
was consistent with the mechanism of injury, Clark had not had treatment for that
condition, and a Mayo Clinic specialist was required to assess her condition. By
contrast, Winnebago points to Dr. Gibbons’s opinion that the tear from a previous
older trauma was not consistent with the area of tenderness Clark identified and
to Dr. Kimelman’s finding that the tear did not explain the pain to the right forearm.
Winnebago argues Dr. Bansal did not personally review the MRI imaging, and
because other doctors found the tear incidental to the pain complaints, Dr. Bansal
misinterpreted the causation between the tear and the pain. But even the doctors
relied upon by Winnebago approached the causation question differently. And in
any question involving a battle of experts, the fact finder must glean from those
expert opinions medical conclusions supported by the evidence. See Grundmeyer
v. Weyerhaeuser Co., 649 N.W.2d 744, 752 (Iowa 2002) (“The commissioner, as
the fact finder, determines the weight to be given to any expert testimony. Such
weight depends on the accuracy of the facts relied upon by the expert and other
surrounding circumstances. The commissioner may accept or reject the expert
opinion in whole or in part.” (quoting Sherman, 576 N.W.2d at 321)).
“We will reverse the commissioner’s application of the law to the facts ‘only
if the commissioner’s application [is] irrational, illogical or wholly unjustifiable.’”
Schutjer v. Algona Manor Care Ctr., 780 N.W.2d 549, 558 (Iowa 2010) (alteration
in original) (citation omitted). Here, the deputy commissioner could find the pain
20
to the right wrist and forearm began after the July work injury and continued without
relief until the time of the hearing. The differing opinions of the medical providers
offered context and were noted in the arbitration decision. Although there were
differing medical opinions, Dr. Kimelman did confirm Clark had chronic right wrist
pain and her condition was causally related to her work activities at Winnebago
even though he could not explain her musculoskeletal pain in her right forearm
based on the MRI imaging. We find it is not irrational, illogical, or wholly
unjustifiable for the deputy commissioner to rely on Dr. Bansal’s definitive
diagnosis of Clark’s condition while still respecting the concerns and questions Dr.
Kimelman raised. Because the alternate medical care recommendation was
reasonable given Dr. Bansal’s opinions, we affirm the award.
Conclusion.
We find no basis for an award to Clark of penalty benefits arising from the
appropriate benefit rate for a married injured worker. We find no basis for an award
to Clark for penalty benefits related to the failure to pay permanency benefits
because that issue was fairly debatable. On the other hand, we remand for a
determination on the applicability of a penalty for the underpayment of temporary
benefits.
Substantial evidence supports the commissioner’s finding of a permanent
injury and the compensation rate calculated at the married rate. With that
determination in hand and reviewing the record as a whole, we affirm the award of
alternate medical care.
AFFIRMED IN PART AND REMANDED FOR FURTHER PROCEEDINGS
ON APPEAL; AFFIRMED ON CROSS-APPEAL.